Sotomayor retreats more under queries

Republicans failed to push Supreme Court nominee Sonia Sotomayor off what appears to be her steady stride towards confirmation Wednesday, though in a series of low-key exchanges she did retreat further on some of her controversial past statements.

Sotomayor gave ground on comments about the role of physical differences in judging and seemed to pull back from a speech defending the use of foreign law by American judges. She also said she had never discussed the issue of abortion or Roe v. Wade with the White House and had no idea why a former colleague said she could be counted on to uphold abortion rights.

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On another hot-button issue, gay marriage she refused to be drawn out, despite the best efforts of Senator Chuck Grassley (R-Iowa).

“Marriage, that also is a question that’s pending and impending in many courts….the issue of marriage and what constitutes it is a subject of much public discussion,” she said. “It’s not that I’m attempting not to answer your question, Senator Grassley, I’m trying to explain the process that would be used…. The ABA [American Bar Association] rules do not permit me to comment on the merits of a case that’s pending or impending before the Supreme Court.”

In his questions, newly seated Sen. Al Franken (D-Minn.) gave a shout-out to the netroots, asking Sotomayor if she agreed that access to the Internet should be an ‘overriding’ First Amendment right.

“Rights are not looked at by the courts as ‘overriding,’ she said. “ Rights are rights and what the court looks at is how Congress balances those rights in a particular situation and then judges whether that balance is within constitutional boundaries.”

Senator John Cornyn (R-Texas) led off the questioning, which even GOP senators acknowledged was often repetitive, by focusing in on a line from a 2001 speech in which Sotomayor said, “Whether born from experience or inherent physiological or culture differences, a possibility I abhor less or discountless than my colleague … our gender and national origins may and will make a difference in our judging.”

As he moved on, Cornyn said he was “struggling a little bit” to reconcile her answers with her claim that “fidelity to the law” is her guiding principle.

Senator Tom Coburn (R-Okla.) elicited an extremely broad statement from Sotomayor that foreign law should not have any impact on the result of American legal disputes. Sotomayor replied, “In the law, there have been upheld in certain situations that certain jobs positions have a requirement for certain amount of strength or other characteristics …You need, to be a pilot … good eyesight.” “We’re not talking about pilots. We’re talking about judging, right?” Cornyn replied.

“The process of judging for me is what life experiences bring to the process. It helps you listen and understand. It doesn’t change what the law is or what the law commands,” Sotomayor replied. “It improves both the public’s confidence that there are judges from a variety of different backgrounds on the bench because they feel that all issues will be more, better — at least addressed. Not that it’s better addressed, but that it helps that process of feeling confident that all arguments are going to be listened to and understood.”

“I’m not sure exactly where that would play out, but I was asking a hypothetical question. ... I was saying, look, we just don’t know,” the nominee said. “What I was saying is: let’s ask the question. ... . Ignoring things and saying, you know, it doesn’t happen isn’t an answer to a situation. … . Consider it as a possibility and think about it. But I certainly wasn’t intending to suggest that there would be a difference that affected the outcome.”